Dismissed election petition: CoA to hear motions seeking stay, leave to appeal to CCJ today

The Guyana Court of Appeal will sit today to consider motions seeking special leave to appeal a decision of that very court to the Caribbean Court of Justice (CCJ), as well as a stay of execution on the ruling. The matter comes up at 09:30h.
Filed by Vice President Bharrat Jagdeo, in his capacity as General Secretary of the PPP, and Attorney General Anil Nandlall, SC, the motion is seeking to appeal against the Court of Appeal’s ruling in which it took jurisdiction to hear one of
APNU/AFC’s election petitions that was dismissed for procedural irregularity.
The Court of Appeal had rendered the ruling on December 21, 2021, and had also granted a stay of execution that day. But with the stay having expired on January 4, Jagdeo and Nandlall are asking the court to further suspend its ruling until their intended appeal is heard and determined by the regional court.

Ruling
In a 2-1 majority ruling, the Court of Appeal ruled that it had jurisdiction to hear an appeal against a decision of Chief Justice Roxane George, SC, to dismiss election petition #99 based on improper service/non-service on the second-named respondent, former President David Granger, within the statutorily prescribed time.
The petition which was dismissed on January 18, 2021, was filed by Monica Thomas and Brennan Nurse and challenges the results of the March 2, 2020 national elections with the intent of having Granger declared the duly-elected President.
The majority ruling was delivered by the Chancellor of the Judiciary Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory, SC, while Justice of Appeal Rishi Persaud had a dissenting judgement.
In their ruling, Justices Cummings-Edwards and Gregory held that to oust the Appeal Court from hearing the appeal against the Chief Justice’s ruling would defeat the purpose of Article 163 of the Constitution of Guyana.
Justice Gregory said, “Parliament would not have left the matter for implication if a decision of the High Court was intended to be a final decision. Parliament would have so expressed. I don’t read the silence to provide an appeal procedure as a shutting out of the jurisdiction of appeal under that scheme — the National Assembly Validity of Election Act.”
As for the Chancellor, while she noted that she considered all the precedence relied on by the Attorney General, she said they failed to invalidate the Court of Appeal’s jurisdiction to hear the appeal.
Meanwhile, Justice Persaud said that considering the unambiguous language of that constitutional provision, as well as the fact that Justice George did not dismiss the petition on its merits, but rather because of procedural errors, a right of appeal did not lie to the Court of Appeal.
“In applying the application test here, it is clear that the order made by your Honour was interlocutory. Had her Honour ruled that the second respondent was not a necessary party or that service was in time, the petition would have proceeded to trial,” noted Justice Persaud.
The Justice of Appeal added, “In any event, there was no final determination of the dispute between the parties. In the circumstances, I would strike out the notice of appeal for want of jurisdiction.”

Manner of service
The manner of service is prescribed in Rule 9 (1) of the National Assembly (Validity of Elections) Rules, which imposes on the petitioners the statutory obligation to effect service within five days after the presentation of the petition.
Having been filed on September 15, 2020, the petition should have been served on Granger five days thereafter, which would have been September 21, 2020, since the fifth day – September 20, 2020 – was a Sunday.
But in Nurse’s affidavit of service, it was stated that the petition, along with the relevant documents, was only served on Granger on September 25, 2020 – five days outside of the statutorily prescribed period.
Given that the petitioners did not comply with the manner of service, Nandlall had filed an application to have the petition struck out on the procedural irregularity, and succeeded before the Chief Justice.
The petitioners then appealed Justice George’s ruling to the Court of Appeal.
At the Court of Appeal, the Attorney General had argued that since the Chief Justice never determined the questions raised in the petition, there was no statutory or constitutional jurisdiction to the Court of Appeal to hear an election petition dismissed for procedural impropriety or any other reason not stated in Article 163 (1) of the Constitution of Guyana.
However, Senior Counsel John Jeremie and Senior Counsel Roysdale Forde, who are representing the petitioners, had argued before the Justices of Appeal that an appeal to a dismissed election petition not only lies under Article 123 of the Constitution, but also the Court of Appeal Act.
Also, they argued that given that the Chief Justice’s ruling was a “final order”, it can be appealed at the Court of Appeal. (G1)